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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                                
                                                                          
                                         )                                
                                                                          
                                         )                                
     In the Matter of                        File No.: EB-06-TC-405       
                                         )                                
     Ureach Technologies, Inc.               NAL/Acct. No.: 200832170058  
                                         )                                
     Apparent Liability for Forfeiture       FRN: 0017954074              
                                         )                                
                                                                          
                                         )                                
                                                                          
                                         )                                


                                     ORDER

   Adopted: February 17, 2011 Released: February 17, 2011

   By the Chief, Enforcement Bureau:

   I. introduction

    1. In this Order, we find that a proposed forfeiture issued by the
       Enforcement Bureau ("Bureau") to Ureach Technologies, Inc. ("Ureach")
       should not be imposed. In a Notice of Apparent Liability for
       Forfeiture ("NAL") issued on July 17, 2008, the Bureau found Ureach
       apparently liable for a forfeiture in the amount of $9,000 for
       delivering two unsolicited advertisements to the telephone facsimile
       machines of two consumers. In its responses to the NAL, however,
       Ureach demonstrates that it is not responsible for the advertisements
       at issue. Based on our review of Ureach's responses and the record, we
       now find that Ureach did not violate section 227 or our related rules,
       and conclude that no forfeiture should be imposed.

   II. Background and DISCUSSION

    2. Section 227(b)(1)(C) of the Act makes it "unlawful for any person
       within the United States, or any person outside the United States if
       the recipient is within the United States . . . to use any telephone
       facsimile machine, computer, or other device to send, to a telephone
       facsimile machine, an unsolicited advertisement."  The term
       "unsolicited advertisement" is defined in the Act and the Commission's
       rules as "any material advertising the commercial availability or
       quality of any property, goods, or services which is transmitted to
       any person without that person's prior express invitation or
       permission in writing or otherwise." Under the Commission's rules, an
       "established business relationship" exception permits a party to
       deliver a message to a consumer if the sender has an established
       business relationship with the recipient and the sender obtained the
       number of the facsimile machine through the voluntary communication by
       the recipient, directly to the sender, within the context of the
       established business relationship, or through a directory,
       advertisement, or a site on the Internet to which the recipient
       voluntarily agreed to make available its facsimile number for public
       distribution. These rules apply only in certain circumstances to a
       "facsimile broadcaster," defined as "a person or entity that transmits
       messages to telephone facsimile machines on behalf of another person
       or entity for a fee." Under the rule, "a facsimile broadcaster will be
       liable for violations of [the junk fax rules], including the inclusion
       of opt-out notices on unsolicited advertisements, if it demonstrates a
       high degree of involvement in, or actual notice of, the unlawful
       activity and fails to take steps to prevent such facsimile
       transmissions."

    3. On September 11, 2006, in response to one or more consumer complaints
       alleging that Ureach had faxed unsolicited advertisements, the Bureau
       issued a citation to Ureach, pursuant to section 503(b)(5) of the Act,
       for using a telephone facsimile machine, computer, or other device to
       send unsolicited advertisements for hardware and office supplies to a
       telephone facsimile machine, in violation of section 227 of the Act
       and the Commission's related rules and orders. The citation informed
       Ureach that within thirty (30) days of the date of the citation, the
       company could either request an interview with Commission staff, or
       provide a written statement responding to the citation.

    4. On July 17, 2008, in response to two additional consumer complaints
       concerning unsolicited facsimile advertisements for vending machines,
       the Bureau issued the NAL to Ureach in the amount of $9,000. On July
       24, 2008, and August 19, 2008, Ureach responded to the NAL, claiming
       that it supports a set of core products, several of which contain
       facsimile applications that are offered to individuals as well as
       small businesses on a subscription basis. Ureach asserts that it did
       not have any involvement with, or any notice of, any customers who
       sent faxes that may have been in violation of the Commission's rules
       and orders, and that Ureach did not send the faxes in question. In
       addition, Ureach stated that it takes measures to prevent unauthorized
       facsimile transmissions, such as requiring its subscribers to agree to
       and adhere to its Terms of Services Agreement, which explicitly
       prohibits subscribers from violating any local, state or national laws
       and regulations, including the Act and all other related FCC rules and
       regulations. 

    5. Upon review of the record, including Ureach's July 2008 and August
       2008 Responses, we conclude that Ureach demonstrates that it is not
       responsible for the advertisements at issue. Those advertisements
       offered products that Ureach does not appear to provide, and were
       apparently transmitted on behalf of other business entities, thus
       supporting Ureach's assertion that it was not the "sender" of these
       advertisements. Further, the record offers no evidence that is
       inconsistent with Ureach's assertion that it does not have a "high
       degree of involvement" with those senders' transmissions. For example,
       the record contains no evidence that Ureach determined the content of
       the faxed messages, provided a source of fax numbers, made
       representations about the legality of faxing to those numbers, advised
       a client about how to comply with the fax advertising rules, or had
       actual notice of unlawful activity. Finally, Ureach appears to have
       taken steps to prevent unsolicited facsimile transmissions, such as
       requiring customers to adhere to a Terms of Service Agreement that
       expressly prohibits such activity, and suspending services to entities
       violating such agreement. We therefore conclude that the proposed
       forfeiture in the NAL issued to Ureach should not be imposed because
       it did not have a "high degree of involvement in, or actual notice of,
       the unlawful activity."

   III. ordering clauses

    6. ACCORDINGLY, IT IS ORDERED that, pursuant to section 503(b) of the
       Communications Act of 1934, as amended ("Act"), and 1.80(f)(4) of the
       Commission's rules, 47 C.F.R. S: 1.80(f)(4), and under the authority
       delegated by sections 0.111 and 0.311 of the Commission's rules, 47
       C.F.R. S:S: 0.111, 0.311, the proposed forfeiture in the amount of
       $9,000 issued to Ureach Technologies, Inc. in the July 17, 2008 Notice
       of Apparent Liability for Forfeiture WILL NOT BE IMPOSED.

    7. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class Mail and Certified Mail Return Receipt Requested to Ureach
       Technologies, Inc., Attn: David J. Warnock, Senior Vice President and
       Chief Financial Officer, 2137 Highway 35, Holmdel, New Jersey 07733
       and Lauren Thelander, Morrison Cohen LLP, 909 Third Avenue, New York,
       NY 10022.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   See Ureach Technologies, Inc., Notice of Apparent Liability for
   Forfeiture, 23 FCC Rcd 10988 (Enf. Bur. 2008).

   Letter from Lauren Thelander, Morrison Cohen, LLP, 909 Third Avenue, New
   York, NY 10022, to Office of the Secretary, FCC, and Colleen Heitkamp,
   Chief, Telecommunications Consumers Division, Enforcement Bureau, File No.
   EB-06-TC-405, dated July 24, 2008 ("July 2008 Response"); letter from
   Lauren Thelander, Morrison Cohen, LLP, 909 Third Avenue, New York, NY
   10022, to Office of the Secretary, FCC, and Colleen Heitkamp, Chief,
   Telecommunications Consumers Division, Enforcement Bureau, File No.
   EB-06-TC-405, dated August 19, 2008 ("August 2008 Response"). Information
   in the record indicates that Ureach held the telephone numbers in question
   during the relevant time period but that the numbers were actually used by
   a customer of Ureach.

   47 U.S.C. S: 227(b)(1)(C); see also 47 C.F.R. S: 64.1200(a)(3).

   47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).

   An "established business relationship" is defined as a prior or existing
   relationship formed by a voluntary two-way communication "with or without
   an exchange of consideration, on the basis of an inquiry, application,
   purchase or transaction by the business or residential subscriber
   regarding products or services offered by such person or entity, which
   relationship has not been previously terminated by either party." 47
   C.F.R. S: 64.1200(f)(5).

   See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3)(i), (ii).

   47 C.F.R. S: 64.1200(f)(6).

   47 C.F.R. S: 64.1200(a)(3)(vii) (emphasis added).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No. EB-06-TC-405, issued to
   Ureach Technologies, Inc. on September 11, 2006.

   See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
   to non-common carriers for violations of the Act or of the Commission's
   rules and orders).

   July 2008 Response at 1-2; August 2008 Response at 2.

   July 2008 Response at 2-3; August 2008 Response at 2.

   Information in the record indicates that Ureach held the telephone numbers
   in question during the relevant time period but that the numbers were
   actually used by a customer of Ureach.

   Compare 47 C.F.R. S: 64.1200(f)(6) ("[t]he term facsimile broadcaster
   means a person or entity that transmits messages to telephone facsimile
   machines on behalf of another person or entity for a fee") with 47 C.F.R.
   S: 64.1200(f)(8) ("[t]he term sender for purposes of paragraph (a)(3) of
   this section means the person or entity on whose behalf a facsimile
   unsolicited advertisement is sent or whose goods or services are
   advertised or promoted in the unsolicited advertisement").

   See 47 C.F.R. S: 64.1200(a)(3);  see also  Rules and Regulations
   Implementing the Telephone Consumer Protection Act of 1991, Report and 
   Order, 18 FCC Rcd 14014, 14129 P: 195 (2003); Rules and Regulations
   Implementing the Telephone Consumer Protection Act of 1991, Report and 
   Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3808 P: 40
   (2006).

   47 C.F.R. S: 64.1200(a)(3)(vii).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 11-289

                                       2

   Federal Communications Commission DA 11-289